PRESENT: All the Justices1

ROBERT LEE SMALLWOOD

OPINION BY

v. Record No. 200803 JUSTICE CLEO E. POWELL

JANUARY 13, 2022

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Robert Lee Smallwood (“Smallwood”) appeals the decision of the Court of Appeals 

affirming the revocation of his deferred disposition and conviction for possession of heroin due 

to his failure to pay court costs.

I. BACKGROUND

On January 1, 2015, Smallwood was arrested for possession of heroin. Smallwood was 

subsequently determined to be indigent and was thereupon appointed counsel. On May 31, 

2016, Smallwood entered into a plea agreement (the “Plea Agreement”) with the Commonwealth 

wherein Smallwood would plead guilty to possession of heroin in contemplation of receiving “a 

statutory first-offender disposition pursuant to [Code § 18.2-251.]”2

 The Plea Agreement further 

specified that Smallwood would be subject to certain terms and conditions. Specifically, 

Smallwood agreed to “pay all court costs and the costs of any programs as ordered by [his] 

probation officer.” The Plea Agreement went on to state that, upon fulfillment of the terms and 

conditions, the circuit court shall dismiss the charge against Smallwood.

1 Chief Justice Lemons presided and participated in the hearing and decision of this case 

prior to the effective date of his retirement as Chief Justice on December 31, 2021. Justice 

Goodwyn was sworn in as Chief Justice effective January 1, 2022.

2 The Plea Agreement actually cites Code § 18.2-251.1. This appears to be a scrivener’s 

error, as Code § 18.2-251.1 addresses possession of medical marijuana, whereas Code § 18.2-

251 addresses deferred dispositions for first time drug offenders.
2

At a hearing on that same day, the circuit court accepted Smallwood’s guilty plea and 

found the facts sufficient for a finding of guilt. The circuit court deferred its finding for one 

year, subject to the terms and conditions listed in the plea agreement. Although the circuit court 

recited some of the terms and conditions in the Plea Agreement, it did not specifically mention 

the payment of court costs. Additionally, the circuit court entered an order titled “Terms and 

Conditions of Suspension of Sentence,” though no sentence, suspended or otherwise, had been 

imposed. The order specifically required that Smallwood pay “[t]he costs of prosecution.”

Smallwood was also required to sign a payment agreement plan (hereafter, “Form CC1379”) wherein he agreed to pay his court costs by May 30, 2017. Form CC-1379 included a 

provision stating:

if the fines, costs, forfeitures, restitution, penalties, and/or interest 

are not paid in full by the date ordered, that the Court shall proceed 

according to the provisions of Virginia Code § 19.2-358, which 

state that a show cause summons or capias for my arrest may be 

issued.

On October 18, 2016, the circuit court memorialized its acceptance of the Plea 

Agreement in a written order (the “Deferral Order”). The Deferral Order noted that the circuit

court had found the evidence sufficient for a finding of guilt but withheld formal adjudication of 

guilt and placed Smallwood on supervised probation for one year “in accordance with Virginia 

Code § 18.2-251 (First Offender) upon all of the usual terms and conditions of probation and 

upon the additional terms and conditions as imposed in open Court and as reflected in the 

transcript of these proceedings.” The Deferral Order also stated, “[a]s special conditions of his 

suspended sentence, the defendant shall . . . Pay the costs on a schedule to be determined by the 

probation officer” and further provided that the matter was continued for a year, to May 30, 

2017, for review. The Deferral Order was endorsed by the Commonwealth, but not by 

Smallwood.
3

Smallwood was released from incarceration in November 2016.3 At a May 30, 2017 

hearing the parties agreed to delay review of the matter until November 13, 2017, to give 

Smallwood a full year to comply with the terms of the Deferral Order. In granting the extension, 

the circuit court asked Smallwood, “you do understand that whatever terms of the Plea 

Agreement you had you do need to complete them by that date, including the paying of costs,” to 

which Smallwood responded, “Yes, sir.” Smallwood went on to state, “Everything will be 

completed.”

At the November 13, 2017 hearing, the circuit court noted that Smallwood had fulfilled 

all of the terms and conditions of the Deferral Order except for the payment of court costs which 

now totaled $1,338.03. Smallwood again asked for more time in light of his substantial 

compliance with the Deferral Order. The circuit court inquired about Smallwood’s income, to 

which he replied that he was making $590 per week. He also informed the circuit court that he 

owed $167 each week in child support payments, and he paid $500 per month in rent. The 

circuit court and the Commonwealth then agreed to an additional one-year continuance. The 

circuit court then admonished Smallwood, stating “Just so I that am clear[,] I expect it to be paid 

in full when we review it” in November 2018. The circuit court also informed Smallwood that 

he would need to be paying approximately $110 per month to satisfy his obligations.

At the November 14, 2018 hearing, the Commonwealth noted that Smallwood had not 

made any payments on his court costs. Smallwood confirmed that he had not made any 

payments, stating “I just haven’t had the money yet.” The circuit court asked whether there was 

any reason not to find him guilty and sentence him today, and Smallwood responded he was 

unable to pay. After noting that payment of court costs was “part of the Plea Agreement,” the 

3 Smallwood was being held on other, unrelated charges.
4

circuit court found that he “had not complied with the terms of the deferred disposition,” and 

adjudicated him guilty as charged.

In his written objections, Smallwood argued the special conditions the court imposed 

were conditions precedent to a suspended sentence, not to deferral or dismissal, and that 

violation of those conditions could not provide a basis for conviction. He contended that the 

conviction was ultra vires, in that it violated federal and state constitutional principles and Code 

§ 18.2-251. In a subsequent hearing, Smallwood argued he could not be convicted due to his 

failure to pay costs because he was indigent. At the same time, however, he acknowledged that 

he had not raised that issue when he entered into the Plea Agreement. After considering the 

matter, the circuit court upheld its previous ruling and found Smallwood guilty. The circuit court 

then sentenced Smallwood to two years’ imprisonment, all suspended.

Smallwood appealed the matter to the Court of Appeals. The Court of Appeals ruled 

that, because Code § 18.2-251 gives a judge discretion to place a defendant on probation subject 

to terms and conditions, a judge may impose terms and conditions in addition to those set forth in 

the statute. The Court of Appeals concluded that the payment of court costs was a term or 

condition authorized by Code § 18.2-251 and, therefore, the circuit court had not erred. The 

Court of Appeals also noted that the alternative, i.e., that Smallwood could remain in a perpetual 

state of deferral for as long as the cost were unpaid, was absurd. With regard to Smallwood’s 

constitutional argument, the Court of Appeals pointed out that he was not convicted for his 

inability to pay court costs, he was convicted for his possession of heroin.

Smallwood appeals.
5

II. ANALYSIS

On appeal, Smallwood initially argues that revoking his deferred disposition and 

convicting him of possession of heroin due to his failure to pay court costs violated due process, 

equal protection and fundamental fairness under the Fourteenth Amendment. In raising this 

argument, Smallwood relies on the United States Supreme Court’s decision in Bearden v. 

Georgia, 461 U.S. 660 (1983). According to Smallwood, Bearden holds that, prior to convicting

him, the circuit court was required to find that there was no legitimate reason for his failure to 

pay costs. He insists that, absent such a finding, the circuit court was required to simply continue 

his deferred disposition.

In Bearden, the United States Supreme Court held:

in revocation proceedings for failure to pay a fine or restitution, a 

sentencing court must inquire into the reasons for the failure to 

pay. If the probationer willfully refused to pay or failed to make 

sufficient bona fide efforts legally to acquire the resources to pay, 

the court may revoke probation and sentence the defendant to 

imprisonment within the authorized range of its sentencing 

authority. If the probationer could not pay despite sufficient bona 

fide efforts to acquire the resources to do so, the court must 

consider alternate measures of punishment other than 

imprisonment. Only if alternate measures are not adequate to meet 

the State’s interests in punishment and deterrence may the court 

imprison a probationer who has made sufficient bona fide efforts to 

pay. To do otherwise would deprive the probationer of his 

conditional freedom simply because, through no fault of his own, 

he cannot pay the fine. Such a deprivation would be contrary to 

the fundamental fairness required by the Fourteenth Amendment.

461 U.S. at 672-73.

At its core, Bearden requires that the circuit court inquire into whether an individual has 

the ability to make the required payments. Id. at 672. If the court determines that the individual 

lacks the ability to pay, it must consider alternative measures of punishment. Id. However, if the 

court determines that the individual “willfully refused to pay or failed to make sufficient efforts 
6

legally to acquire the resources to pay, the court may revoke probation and sentence the 

[individual] to imprisonment within the authorized range of its sentencing authority.” Id.

The Commonwealth argues that Bearden is inapplicable in this case due to the fact that 

the parties entered into a plea agreement. In essence, the Commonwealth asserts that when 

Smallwood breached the Plea Agreement by failing to pay the court costs, he lost his contractual 

expectancy to the dismissal of the charge against him and, therefore, the trial court’s decision to 

convict him was not a due process violation. Stated another way, the Commonwealth seeks to 

draw a distinction between a deferred disposition imposed by the trial court pursuant to a statute 

and a deferred disposition imposed pursuant to a plea agreement. According to the 

Commonwealth, Bearden would only apply to the former.

We need not address whether such a distinction exists at this time. Assuming without 

deciding that Bearden applies, we note that the record establishes that the circuit court made the 

requisite inquiry. During the November 13, 2017 hearing, the circuit court specifically requested 

information regarding Smallwood’s ability to pay his court costs. Based on the financial 

information offered by Smallwood and Smallwood’s affirmative representation that he could pay 

the costs with more time, the circuit court granted him an additional year in which to make the 

payments. This decision clearly represents an implicit finding that Smallwood had the ability to 

pay if given more time.

Having determined that he had the ability to pay, the question before the circuit court was 

whether Smallwood made “sufficient bona fide efforts legally to acquire the resources to pay.” 

Id. at 672. As the individual who would have all of the relevant information on this issue, the 

burden was on Smallwood to make the necessary showing. See id. at 673 n.12 (requiring courts 

to consider “whether the defendant has demonstrated sufficient efforts to comply with the terms 
7

of probation”). In Bearden, the petitioner presented evidence regarding his lack of income and 

assets and his repeated attempts to obtain work, which the United States Supreme Court 

indicated would support a finding that the petitioner had made sufficient bona fide efforts to pay. 

Id. at 673.

Although Smallwood similarly claimed that he was not in a financial position to make 

any payments, he did not present any evidence in support of his claims, nor did he make any 

attempt to proffer such evidence. To the contrary, at the November 2018 hearing, Smallwood 

stated that he brought “all [his] pay stubs,” confirming that he was still employed, which, given 

his previous affirmative representation, supports a finding that he willfully refused or failed to 

make sufficient bona fide efforts to pay his court costs. Bearden expressly holds that, under 

these circumstances, a court is permitted to revoke an individual’s probation and sentence them. 

Accordingly, Smallwood’s reliance on Bearden is misplaced.

Smallwood next argues that the Court of Appeals erred because paying costs was not a 

valid “term or condition” under Code § 18.2-251. He notes that Code § 18.2-251 does not 

specifically mention the payment of costs as a term or condition of a deferred disposition and he

asserts that that imposing such a term or condition is ultra vires. We disagree.

“[W]e presume that [the General Assembly] chose with care the words it used when it 

enacted the statute we are construing.” Bonanno v. Quinn, 299 Va. 722, 730 (2021). Here, the 

operative language of Code § 18.2-251 states that a court “may defer further proceedings and 

place [the individual] on probation upon terms and conditions.” The statute then provides that, 

“[a]s a term or condition,” the individual shall be required to “undergo a substance abuse 

assessment.” Id. (emphasis added). Similarly, the statute includes several requirements that 

must be included “[a]s a condition of probation.” Id. (emphasis added). The indefinite article 
8

“a” is “used as a function word before most singular nouns . . . when the [singular noun] in 

question is undetermined, unidentified, or unspecified.” Webster’s Third New International 

Dictionary 1 (1993). Therefore, the use of “a” before “term or condition” and “condition of 

probation” indicates that the General Assembly did not intend to limit the terms or conditions 

that could be imposed; rather, it sought to enumerate those terms or conditions that were required 

to be imposed. In other words, the General Assembly intended for the list of terms or conditions 

included in the statute to be inclusive, not exclusive.

“Statutes that permit the trial court to impose alternatives to incarceration . . . are highly 

remedial and should be liberally construed to provide trial courts valuable tools for rehabilitation 

of criminals.” Peyton v. Commonwealth, 268 Va. 503, 508 (2004). As such, the use of these 

tools lies within the broad discretion of the circuit court. Id. Therefore, the decision to require 

that Smallwood pay his court costs as a term or condition of his deferred disposition falls 

squarely within the broad discretion granted to the circuit court by the General Assembly.

Smallwood further insists that, even if the payment of costs was a term or condition that 

could be imposed under Code § 18.2-251, the circuit court erred in convicting him because 

neither the Plea Agreement, the Deferral Order, nor Form CC-1379 states that a failure to pay 

court costs would result in a conviction. He also notes that the only document that mentions any 

consequences for failing to pay court costs is Form CC-1379, which only provides that he could 

be found in contempt. Therefore, according to Smallwood, at most, the circuit court could find 

him in contempt and refuse to dismiss the underlying charge. Again, we must disagree.

To decide this issue, we need only look to the plain language of Code § 18.2-251, which 

states, “[u]pon violation of a term or condition, the court may enter an adjudication of guilt and 

proceed as otherwise provided.” It is undisputed that the payment of court costs was included as 
9

a term or condition of the Deferral Order and as discussed above, that term or condition was 

valid under Code § 18.2-251. As the statute expressly addressed the consequence of violating a 

term or condition, it was unnecessary to include similar language in the Deferral Order.

Moreover, Smallwood’s contention that he was unaware that his failure to pay court costs 

would result in him being found guilty is belied by the Plea Agreement that he entered into and 

asked the circuit court to accept. The Plea Agreement specifically provided that, in exchange for 

his guilty plea, Smallwood’s “finding of guilt and the disposition of the matter shall be deferred 

for one (1) year,” subject to certain terms and conditions. One of these conditions was the 

payment of “all court costs.” Thus, it is clear that Smallwood’s obligation to pay court costs as 

an express condition of his deferred finding of guilt originated with his Plea Agreement.

Contrary to Smallwood’s argument, the language of Form CC-1379 does not limit the 

circuit court’s ability to convict him under Code § 18.2-251. Rather, Form CC-1379 simply 

offers the circuit court a separate avenue of penalizing Smallwood for his failure to pay court 

costs: a finding of contempt under Code § 19.2-358. Absent any showing that the circuit court 

abused its discretion, we cannot say that the circuit court erred in choosing to convict Smallwood 

under Code § 18.2-251 as opposed to finding him in contempt under Code § 19.2-358.

III. CONCLUSION

For the foregoing reasons, the Court of Appeals’ judgment upholding Smallwood’s 

conviction will be affirmed.

Affirmed.